Did Justice Scalia Already Give Us the Solution to the Problem of Filling His Seat?

by Selwyn Duke2/16/16
The death of the intrepid Justice Antonin Scalia has shaken the political world. If his successor’s appointment cannot be delayed until the next presidency, it’s assured that an unassailable hard-left majority will control the Supreme Court. This will mean, conservatives warn, the end of significant Second Amendment rights, curtailment of many religious freedoms and a consistent rubber-stamp for the “progressive” agenda.

Unfortunately, the likelihood of replacing Scalia — the court’s pre-eminent legal mind — with even a pale imitation is slim. For it to happen

the Senate will have to exhibit fortitude and delay the confirmation of a successor.

a Republican will have to win the presidency.

the GOP will have to retain the Senate in Nov., and 24 GOP seats but only 10 Democrat ones are up for grabs.

the Republican president in office will have to nominate someone not a wolf in constitutionalist’s clothing; the chances of this alone happening are likely less than 50 percent.

The probability of all four of the above coming to pass isn’t great. And, regardless, while we will fill the great Scalia’s position, we’ll never fill his shoes. Yet perhaps the real solution to this problem lies with something Scalia himself said — just last year.

The real issue here is not whether Scalia’s successor will abide by the Constitution.

It’s whether we will.

Consider: in a representative republic of 320 million people, we’re all now talking about how one appointment of one unelected lawyer can radically change the face of American law, rights and freedoms. Anything wrong with this picture?

This isn’t to say that a civilization’s fate being radically altered by one man’s death and another’s ascendancy hasn’t been humanity’s norm. Autocracy has been humanity’s norm. The king would pass on and people might lament, “You mean Aylwin, that kid who drools on his cloak, is next in line? How shall we be ruled?” But does this sound like a concern in a land of, by and for the people? The fact is that a government cannot be stable if one man’s fancies and fortunes can have such a great impact on it and the wider society. Did the Founding Fathers — who were most concerned about avoiding the aggregation of power by any one entity — really devise such a flawed system?

This brings us to Scalia’s comment, made in his dissenting opinion in the 2015 Obergefell v. Hodges (marriage) ruling. To wit: with “each decision…unabashedly based not on law” the Court moves “one step closer to being reminded of [its] impotence,” he warned his colleagues. To what was he referring?

Obviously, the Court has neither army nor police to enforce its judgments; it is government’s executive branch — headed by the president on the federal level and governors in the states — with the constitutional warrant to enforce law. And whatever executive branches don’t enforce doesn’t happen, period, no matter how much black-robed lawyers stamp their feet.

But is this just a matter of might makes right? Aren’t we to be a nation of laws? For sure.

A nation of laws, not lawyers.

Laws — not judicial decisions.

There is a difference. Note that Scalia complained of decisions “unabashedly based not on law,” clearly drawing a distinction between decisions and laws. Conclusion? An executive branch upholding illegal decisions is, by definition, not safeguarding the rule of law.

And an executive branch that defies ignores illegal court decisions is preserving the rule of law.

“Defies” is crossed out above because that term can connote resistance to authority. But the Supreme Court is not the Supreme Being. What “authority” over all and sundry does it have? Some will now answer, “Judicial supremacy!” Let’s examine that.

The legislative branch has the power to make law because the Constitution grants it. The executive branch has the power to enforce law because the Constitution grants it. And the courts exercise judicial supremacy — where its decisions constrain not just its own branch but the other two as well, making it not a “co-equal” branch but a super-legislature/über-executive — because ____________?

The answer has nothing to do with the Constitution. Rather, the Supreme Court unilaterally declared the power in the 1803 Marbury v. Madison ruling.

That’s right: Like an upstart seizing the reins in a palace coup, the Supreme Court assigned the Supreme Court its oligarchic power, all without the force of arms. It’s a nice con if you can pull it off.

This isn’t how our system is meant to work. A governmental branch derives its power from the Constitution — not from itself. And how dangerous is this usurpation? Founding Father Thomas Jefferson warned in 1819 that judicial supremacy’s acceptance would do nothing less than make “our constitution a complete felo de se”— a suicide pact. He explained:

For intending to establish three departments, co-ordinate and independent, that they might check and balance one another, it has given, according to this [judicial supremacy] opinion, to one of them alone, the right to prescribe rules for the government of the others, and to that one too, which is unelected by, and independent of the nation…. The constitution, on this hypothesis, is a mere thing of wax in the hands of the judiciary, which they may twist, and shape into any form they please.

Abraham Lincoln, who ignored the Dred Scott decision, also agreed. As Princeton University professor Robert George put it while conducting a December interview with Senator Ted Cruz, Lincoln said “that to treat unconstitutional court rulings as binding in all cases, no matter what, no matter how usurpative, no matter how anti-constitutional, would be for the American people — and I quote now the Great Emancipator — ‘to resign their government into the hands of that eminent tribunal.’” Jefferson was even more pointed, writing in 1820 that judicial supremacy is “a very dangerous doctrine indeed, and one which would place us under the despotism of an oligarchy.” And so it has come to pass. We’re now reduced to arguing about how the next appointed oligarch will shape us wax people.

Satirist Jonathan Swift wrote, mocking the legal profession in Gulliver’s Travels, that it is a maxim among lawyers “that whatever has been done before, may legally be done again…,” no matter how preposterous. Just as bad, however, is when we abide by judicial supremacy again and again, simply because it has been done before. Part of what motivates this deference is ignorance and (bad) habit, and part is cowardice and political expediency. After all, hiding behind unconstitutional court rulings allows politicians to avoid making difficult decisions. When Ohio governor John Kasich said last June after Obergefell that faux marriage is “the law of the land and we’ll abide by it,” he was essentially stating “Hey, don’t look at me. The Court did it!” Of course, he also said that now “it’s time to move on,” which he was more than happy to do. He has got his political career to consider — Constitution be damned.

Any president, governor or legislator worth his salt would do his duty and tell usurpative judges to go pound sand. Some will say that this would set off a “constitutional crisis,” but newsflash: we’re already experiencing a constitutional crisis. This occurs not when the Constitution is protected by bringing to heel those who trample it, but when that trampling goes unanswered.

By the way, you know who else apparently questions judicial supremacy? Barack Obama. He has shown willingness to ignore the courts; in fact, he has been so dismissive that a federal appeals court actually ordered the administration in 2012 to submit a letter stating whether or not it recognized the judiciary’s “power.”

Of course, Obama will defy constitutional laws; in contrast, “conservatives,” being conservative (as in reluctant to take bold action), won’t even ignore unconstitutional rulings. It’s an old story. Liberal-controlled localities have been nullifying (ignoring) federal immigration and drug laws for decades. But conservatives consider nullification — even in the defense of legitimate freedoms — some kind of radical action, despite Jefferson’s calling it the “rightful remedy” for all federal usurpation. And “conservative” justices tend to feel constrained by “precedent,” even the unconstitutional variety, yet don’t expect any liberal Scalia replacement to bat an eye at overturning constitutional precedent that contradicts the leftist agenda. Is it any wonder conservatives never saw a cultural or political battle they couldn’t lose?

One might say conservatives fight by Queensbury rules while liberals operate no-holds-barred, but it’s not even that. Though conservatives are allowed to throw punches, they prefer to stand and block and be a punching bag — while the liberals throw sand in their eyes and kick off their kneecaps.

Calling the Court a “threat to American democracy,” Justice Scalia wrote in his Obergefell dissent, “[I]t is not of special importance to me what the law says about marriage. It is of overwhelming importance, however, who it is that rules me. Today’s decree says that my Ruler, and the Ruler of 320 million Americans coast-to-coast, is a majority of the nine lawyers on the Supreme Court.” We won’t talk the court out of its power-mad, usurpative bent. Only power negates power. It’s time to stop acting like impotent fools and start showing the Court how impotent it really is.

Yup. But such men — for better or for worse — do not exist today…at least on the right. They’ve all turned into pussies. One can grudgingly respect the backbone, twisted though it is, that the Left puts behind their beliefs.

Politicians such as Kasich hide behind Court decisions. If they actually disagreed with the usurpation of power by the Supreme Court, they would act against it. But the fact is, politicians like the consolidation of power in the government as they are major beneficiaries of it. One can safely bet that the big majority of those who are in government like big government. Because of this, real conservatives are handicapped from the get-go.

This is one of the reasons that it, too often, takes pitch forks and torches to change the direction government.

But the fact is, politicians like the consolidation of power in the government as they are major beneficiaries of it.

I think that’s true to a large extent, Mr. Kung. Certainly the courts sometimes make decisions that take power out of the hands of government. And very often the decisions have more to do with ideology (the Leftist utopian ideology) than they do with power, per se.

A guy like Kasich has basically made the calculation that leaving his testicles at the door is the way to go. This isn’t explicitly written into the Establishment GOP constitution, but it’s implicit. To actually stand for something, instead of being “congenial” and “compromising,” would scare the ladies and girly-men who demand, first and foremost, that government should impose no psychological burdens on them. Government should be the soother of emotions.

But to stand on principle, if you ask me, is a very manly thing. It means looking people in the eye and saying, “We will do what’s right, even if there is a little short-term pain involved.” And, yes, it’s great that Margaret Thatcher could do that too. And, yes, this standing on principle has often led to unnecessary conflict as machoism ran amok. But it is generally men who draw the necessary lines in the sand and who say that an idea trumps short-term emotion.

This is one reason why the rule-of-law is being replace by the rule of emotion: women. Now, there’s much to be said for the entrance of women in politics. But if we don’t acknowledge the downside, we are lost. You can’t fix a problem unless you acknowledge the problem. And I think the rule-of-law is being frittered away because the men will not stand up and be men. What we have now are hosts of little boys, many of them playing at being “libertarian,” for example.

God give us an Andrew Jackson or Calvin Coolidge. We need someone who will stand up and be a leader and not a socialist enabler — but at the same time, isn’t a raving lunatic like Trump.

Some of the GOP candidates, unlike Kasich the Worthless (a conservative who decided to become a liberal so that the synoptic media would support him, and who will learn if by some sad chance he’s nominated that their support is time-limited), have strongly opposed the homosexual marriage decision. Cruz is one, though I’m beginning to think he might be better saved for a replacement for Scalia. (Or how about Miguel Estrada? That would be a finger in the eye for the Demagogues. He would make a good choice for a President Cruz.)

I understand Selwyn’s frustration with Marbury v. Madison, but as I’ve written on ST before, there is a difference between judicial supremacy and judicial review. The latter should by no means be objectionable to Conservatives, for without it we have no means of preventing the Left from implementing its programs when they control the legislature. Here in Illinois the only reason we have even a very limited right to carry concealed pistols is because a Federal Court held the State Legislature could not entirely deny the right. It’s true that carrying has been made as difficult and expensive as possible by Chicago Democrats, who crafted the law to just barely satisfy the court’s order, but before the courts and judicial review, it was made impossible by Chicago Democrats.

What of Obamacare? Are we not up in arms that CJ Roberts failed to strike down the act as unconstitutional? What about Heller, or Citizens United? These victories for liberty were won by judicial review. And when we consider not only Obamacare, but most if not all of the New Deal, we should see that the larger problem with the courts is not that they strike down too many laws but too few.

Nor is it true that the Supreme Court came out of nowhere with Marbury. The power to declare state acts void had been exercised for 40 years before that by state courts, and by English courts before that (no longer, sad to say, and the British Parliament is now supreme).

So what is the difference between judicial supremacy and judicial review? Scalia’s words themselves provide us with the answer: “each decision…unabashedly based not on law”. Thus judicial review becomes judicial supremacy when the Court’s decision is obviously based not on the law but on the personal preferences of the justices. There are three very obvious historical examples: Dred Scott, Roe v. Wade, and Obergefell. As bad as these decisions are, I say again they pale in comparison to the threat to liberty of not judicial activism but judicial inactivism.

Resisting such decisions as Obergefell is reasonable, but could result in a clash between the states and the federal government (if resistance takes place at the state level). While I’m willing to go that far in defense of, I have another suggestion that might be better at the present time: that a Republican-controlled Congress use its power to remove certain cases from the jurisdiction of the federal courts altogether, say any time the Court abuses the power of judicial review. This can be done by ordinary statute and does not require a Constitutional Amendment, even in the case of the Supreme Court. State laws regarding abortion and marriage could be placed beyond judicial review – not ideal, perhaps, but it would send a message to the Court.

Another plan, which I think has been proposed by Ted Cruz, is to let the American people remove bad justices. Two Iowa Supreme Court Justices were so removed when they invented a “right” to gay “marriage” in that State.

The key question is whether the decision is based on the Constitution or the winning justices’ personal preferences. Liberal justices choose the latter course, as does Anthony Kennedy. Such juristocrats remind me of the motto of my native state, Virginia.

The latter should by no means be objectionable to Conservatives, for without it we have no means of preventing the Left from implementing its programs when they control the legislature.

There’s something to be said for not implementing earth-shattering and abrupt shifts in culture. That, unfortunately is an idea so simple and clear, a child could understand it. All else being even, revolutions are bad.

But the talking heads of the pseudo-conservative press use it to show how damn smart they supposedly are. But I see all such rationales from the talking head class to just be an excuse to do nothing and take responsibility for nothing.

We’ve let time eat away at the very idea of Constitutionality. That it might be painful to go back to this idea is clear. But it’s likely to be even more painful to keep going the way we are going which means a tyranny of the elite. Right is right and wrong is wrong. No one should hide behind too-clever-by-half ideas of “judicial restraint” when they simply mean they haven’t the stomach for ratcheting back.

Bill of Rights

Amendment I

Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.

Amendment II

A well regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms, shall not be infringed.

Amendment III

No Soldier shall, in time of peace be quartered in any house, without the consent of the Owner, nor in time of war, but in a manner to be prescribed by law.

Amendment IV

The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.

Amendment V

No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a Grand Jury, except in cases arising in the land or naval forces, or in the Militia, when in actual service in time of War or public danger; nor shall any person be subject for the same offence to be twice put in jeopardy of life or limb; nor shall be compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation.

Amendment VI

In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the State and district wherein the crime shall have been committed, which district shall have been previously ascertained by law, and to be informed of the nature and cause of the accusation; to be confronted with the witnesses against him; to have compulsory process for obtaining witnesses in his favor, and to have the Assistance of Counsel for his defence.

Amendment VII

In Suits at common law, where the value in controversy shall exceed twenty dollars, the right of trial by jury shall be preserved, and no fact tried by a jury, shall be otherwise re-examined in any Court of the United States, than according to the rules of the common law.